Menon and Australian Postal Corporation

[2000] AATA 527

DECISION AND REASONS FOR DECISION [2000] AATA 527

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q99/1035

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      PREM MENON       
  Applicant
           And    AUSTRALIAN POSTAL CORPORATION        
  Respondent

DECISION

Tribunal       Deputy President DP Breen, Presidential Member  Dr JB Morley, Member           

Date1 June 2000

PlaceBrisbane

Decision      The Tribunal sets aside the decision under review and remits the matter to the respondent with the direction that worker's compensation and other entitlements due from the applicant's relevant absence be paid and that any sick leave entitlements be adjusted accordingly.  The Tribunal orders that the respondent pay the applicant's costs as agreed between the parties or failing agreement as taxed by the District Registrar in accordance with the Costs Practice Direction.            

(Sgd)          DP BREEN
  PRESIDENTIAL MEMBER
CATCHWORDS
COMPENSATION – reporting requirements – provision of medical certificates.
Safety Rehabilitation and Compensation Act 1988 s 53

REASONS FOR DECISION

1 June 2000  Deputy President DP Breen, Presidential Member Dr JB Morley, Member             

1. This is a review of a decision dated 16 August 1999 whereby liability for payment of compensation for lower back strain was denied by the respondent.  At the hearing the applicant, Prem Menon, was represented by Mr DC Rangiah of Counsel instructed by Messrs Maurice Blackburn and Cashman, Solicitors and the respondent by Mr AP Collins of Counsel instructed by Messrs Clarke and Kann.

2. On 1 June 2000 the Tribunal gave an oral decision in this matter. Pursuant to Section 43 of the Administrative Appeals Tribunal Act 1975 the applicant has requested written reasons for the decision. 

3. The facts of this case are comprehensively contained in Exhibit 2 and the Section 37 Statement.  The relevant parts of these documents are as follows.  Exhibit 2 is a document entitled "Respondent's Admissions".  It was tendered by Counsel for the respondent.  It reads:

   "The respondent admits that:

   1.the Applicant has suffered an injury of the nature and to the extent indicated in the medical reports and certificates contained in the T documents and the report of Dr Gillett dated 14 March 2000.

   2.the Applicant was incapacitated for work as a result of his injury.

   The Respondent denies that the Applicant's injury arose out of or in the course of his employment.
   The Respondent concedes that the sole issue for the Tribunal is whether the Applicant suffered a back injury at the Northgate Mail Centre in the course of his employment on 17 May 1999."

1. The Section 37 Statement records that a reconsideration decision was made on 16 August 1999 which "upheld the determination by the respondent to deny liability to the applicant under the Safety Rehabilitation Compensation Act 1988 in respect of liability for lower back strain".

2. Under the heading "Case History", the Section 37 Statement reads:

   "The Applicant is employed as a mail offer [sic] at the Northgate Mail Centre.  He submitted a claim for compensation on June 2, 1999 for an injury he maintains he sustained on May 17, 1999.  The Applicant first reported the injury of May 24, 1999.  The Applicant states he suffered a lower back strain lifting parcels in a ULD.  The claims manager denied liability on July 5, 1999 and the Applicant sought reconsideration of this decision on July 19, 1999.
   Under Section 4 of the Safety Rehabilitation and Compensation Act 1988, it must be established, on the balance of probability as distinct from possibility that an injury or disease was caused by the Applicant's employment for a claim to be successful."

1. To be more accurate, that statement should not be confined to causation.  It should acknowledge, as well, liability in the event of aggravation of a pre-existing condition.  The document reads on:

   "No incident or injury was reported to a supervisor or manager on May 17, 1999.  This is the required procedure.  Glenda Bray-White of the Mail Parcel Centre states that when the Applicant telephoned his work centre at 6.10 pm on May 18, 1999 to advise that he was not attending work, he did not state that his medical condition was work related even though he was specifically asked that question."

1. Diverting again from this document, I shall deliver the Tribunal's specific finding on that claim of Ms Bray-White later when I reach our reasons.

   "The absenteeism report form completed at the time of the telephone call indicates 'sick leave' and includes the comment 'Prem has a medical concern.  He will have a certificate'.  The Human Resources Manager has confirmed that the first indication management had of any alleged work incident or injury was on the following Monday, May 25, 1999 when a Workers Compensation Certificate arrived in the mail.
   It is noticed that when the Applicant first sought medical treatment from Dr Phun on May 18, 1999 he provided a normal sick leave medical certificate rather than Worker's Compensation Medical Certificate.  There was no indication of his injury being work related.  It is noted that the Applicant returned to Dr Phun on Saturday May 22, 1999 at which time he was provided with a Workers Compensation certificate back dated to May 18, 1999.
   The Applicant has indicated that he had problems with his back in the past and has previously injured his back 'while getting out of a car'.
   The Respondent has no reason to doubt the Applicant's contention that he experienced symptoms of lower back pain from May 18, 1999.  The Respondent has not, however, found sufficient evidence to support the claim that the Applicant suffered an injury or disease as a result of his employment on May 17, 1999.  His claim for compensation under Section 14 of the Act was therefor disallowed.
   Section 53(1) of the Safety Rehabilitation and Compensation Act states 'this Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority:
   (a)       as soon as practicable after the employee becomes aware of the injury…"

The document concludes:

"The applicant has worked for Australia Post in excess of 18 years and is aware of the requirement to report an injury.  Notwithstanding this requirement, the applicant chose to disregard the reporting procedure.  The respondent has been prejudiced in its ability to investigate this incident."

1. The Tribunal finds the reasoning behind the primary decision and the decision on reconsideration to be quite unacceptable, although, of course, having said that, we record and acknowledge that we are not reviewing the reasons for the decision under review;  we are reviewing the decision itself.

2. However, those comments have been made and we have read them into our record.  We wish to say some things about it.  Firstly, the type of medical certificate provided by Dr Phun was, on all of the evidence, and on any reasonable inference to be drawn from it, at all times a matter for Dr Phun.  It was a matter that was not in any way under the control of Mr Menon.  Secondly, when the doctor chose to provide what is called a "Worker's Compensation Medical Certificate", he provided it on a Work Cover Queensland medical certificate form, which we understand to be a form of a kind provided by Queensland compensation authorities to all practising medical practitioners, but certainly to all general medical practitioners.

3. The Tribunal is not aware that Comcare provides any such form to medical practitioners.  If it does, as Presiding Member, I have never seen one in 14 years in my present position, and I am certainly not aware that the Australian Postal Corporation provides such a form.  If it expects the medical profession to inform it relevantly, then it should not rely upon the coincidental provision to medical practitioners of such forms by a Queensland State authority.

4. Some questions of credibility arose in this matter, and I indicated yesterday that my colleague, Dr Morley, and I had no difficulty whatsoever in accepting the applicant, Mr Prem Menon, as a credible and reliable witness.  We accept his evidence that on 17 May 1999 he became aware of what he described as a twinge of pain in the lower back.  We accept that that occurred as a result of an aggravation of a pre-existing condition of degeneration of his spine and that that aggravation occurred as a result of his lifting a heavy item of mail out of what is called a ULD, whatever that may be.  We accept that that amounts to an injury in terms of the legislation.

5. We accept Mr John Douglas Morgan also as a credible and reliable witness.  We therefore accept that at the time of Mr Menon incurring this twinge of pain – incurring this aggravation of a pre-existing condition – he complained of it to a work-mate.  It is the case that he did not complain of it to superiors in the work-force until a week later.  However, we do not regard that failure, or, rather, we do not allow his allowing that amount of time to pass before reporting the injury, to amount to a disentitling incident under subsection 53(1) of the Safety Rehabilitation and Compensation Act 1988.

6. As to the evidence of the witness Glenda Bray-White, who spoke of receiving hundreds of phone calls from employees phoning in to say they were having a day off, we are quite satisfied that she did not specifically ask Mr Menon whether what apparently he described as a medical concern was work-related.  Rather, we find that she worked her way through the Absenteeism Report Form as he was on the phone to her, that form being Document T4, Folio 11, of the "T" Documents.

7. It records the time on that day of the phone call as being 6.10 pm.  It records his name.  It records that he was reporting the absence.  It then moves to question 3, which is in two parts, part (a) and part (b).  Part (a) calls for one of three boxes to be ticked as indicating the reason for absence.  The first of the three boxes is ticked.  That box is the sick leave box.  The next box is the work-related box.  The third and final one is the special leave box.  Dr Morley and I are quite satisfied that what happened was that Ms Bray-White, in working her way through this form, asked Mr Menon was he applying for sick leave, to which he said "yes".

8. She ticked that box and moved on, we are quite certain, to part (b) of question 3.  At, "Any other information offered by the called", which presumably should be the "caller" appears "Prem has a medical concern.  He will have a certificate".

9. Then it moves on to record that the "Expected period of Absence" was "all week" and, finally, "Officer Accepting Call:  G. Bray-White".  Ms Bray-White's evidence, we have got no doubt, was based solely upon whatever document, including this one, she filled out at the time.  We were quite satisfied she had no independent memory whatsoever of this one of, according to her, hundred of calls that she received.  On the contrary, of course, Mr Menon, who has indeed worked for Australia Post for 18 years, has only twice claimed worker's compensation.  So, at the most, in respect of a period of absence from work which led to a worker's compensation claim, he would only have made two such calls, and the more recent of them was the one he made to explain the relevant absence from work that forms the substance of this case.

10. Those being our findings, it follows that our decision is that the decision under review will be set aside.  The matter will be remitted to the respondent, Australian Postal Corporation, with a direction that worker's compensation and other entitlements due to the applicant as a result of the relevant absence from his place in its work-force be assessed and paid, that sick leave entitlements and other such adjustments be attended to.

11. It follows from our decision that the applicant is entitled to an order for costs.  The Tribunal orders that the respondent pay the applicant's costs of these proceedings, that it pay them in such sum as is agreed, or failing agreement, in such sum as is taxed by the Registrar of the Brisbane Registry of the Administrative Appeals Tribunal, such taxation, if called for, to be conducted in accordance with the Tribunal's Costs Practice Direction.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member and Dr JB Morley, Member. 

Signed:         Emma Oettinger
  Associate

Date/s of Hearing  31.5.00    
Date of Decision   1.6.00
Counsel for the Applicant         Mr DC Rangiah
Solicitor for the Applicant          Messrs Maurice Blackburn and Cashman
Counsel for the Respondent    Mr AP Collins
Solicitor for the Respondent    Messrs Clarke and Kann